Terms and Conditions
LIMITED LICENSE: Customer shall not sell or transfer reproductions of the Software Product to third parties or use the Software Product for any purpose not specifically permitted under this Order.
EFFECT OF EXPIRATION OR TERMINATION: Promptly upon expiration or termination of the Order, Customer shall delete all copies of the Software Product and all related materials. Customer shall return the physical media containing the Software Product to ReliaQuest. At Carbon Black’s or ReliaQuest’s request, Customer shall certify the destruction and return of the Software Product and related materials. The provisions of this Addendum regarding Limitation of Liability and Indemnification by Customer shall survive expiration or termination of the Order indefinitely.
OWNERSHIP; COPYRIGHT: Customer acknowledges and agrees that (a) title to the Software Product, and patents, copyrights and all other property rights applicable thereto, will at all times remain solely and exclusively with Carbon Black, and Customer will not take any action inconsistent with such title, (b) the Software Product is protected by United States and other applicable laws and by international treaty provisions and (c) any rights not expressly granted herein are reserved to Carbon Black.
OTHER RESTRICTIONS: Customer shall not (a) cause or permit the disclosure, copying, renting, licensing, sublicensing, leasing, dissemination or other distribution of the Software Product by any means or in any form, (b) use the Software Product to conduct a service bureau or similar business for the benefit of third parties, or (c) modify, enhance, supplement, create derivative work from, adapt, translate, reverse engineer, decompile, disassemble or otherwise reduce the Software Product to human readable form.
ULTRAHAZARDOUS ACTIVITIES: Customer acknowledges and agrees that the Software Product is not designed, manufactured or intended for use in any environment in which the failure of the Software Product could lead to death, personal injury or severe physical or environmental damage, which uses and environments may include, but are not limited to, the design or operation of nuclear facilities, aircraft navigation or communication systems, air traffic control, direct life support machines or weapons systems or the on-line control of equipment in any hazardous environment requiring fail-safe performance. Customer represents and warrants that it will not install or use the Software Product for such purposes.
DISCLAIMER OF WARRANTIES: CARBON BLACK EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE SOFTWARE PRODUCT, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
LIMITATION OF LIABILITY: UNDER NO CIRCUMSTANCES WILL CARBON BLACK BE LIABLE TO CUSTOMER FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR OTHER INDIRECT DAMAGES, EVEN IF CARBON BLACK IS ADVISED OF OR AWARE OF THE POSSIBILITY OF SUCH DAMAGES. ANY LIABILITY FOR DIRECT DAMAGES WILL BE LIMITED TO FEES PAID FOR THE APPLICABLE SOFTWARE PRODUCT.
EXPORT AND IMPORT COMPLIANCE: Customer acknowledges and agrees that (a) Customer assumes the responsibility for compliance with all applicable import, export and re-export regulations, as the case may be, including but not limited to, any regulations of the Office of Export Administration of the U.S. Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, and other U.S. agencies and the export control regulations of the European Union; (b) the Software Product will not be used, and none of the underlying information, software, or technology may be transferred or otherwise exported or re-exported to countries as to which the United States and/or the European Union maintains an embargo (collectively, “Embargoed Countries”), or to or by a national or resident thereof, or any person or entity on the U.S. Department of Treasury’s List of Specially Designated Nationals or the U.S. Department of Commerce’s Table of Denial Orders (collectively, “Designated Nationals” ), which lists of Embargoed Countries and Designated Nationals are subject to change without notice; (c) Customer will comply strictly with all applicable laws and assume sole responsibility for obtaining licenses to import, export or re-export as may be required; and (d) the Software Product may use encryption technology that is subject to licensing requirements under the U.S. Export Administration Regulations, 15 C.F.H. Parts 730-774 and Council Regulation (EC) No. 1334/2000.
GOVERNMENT RESTRICTED RIGHTS: Customer acknowledges and agrees that the Software Product is “commercial computer software” or “commercial computer software documentation”, and that absent a written agreement to the contrary, the U.S. Government’s rights with respect to such Software Product are limited by the terms of this Addendum, pursuant to FAR § 12.212(a) and/or DFARS § 227.7202-l(a), as applicable.
THIRD PARTY BENEFICIARY: Customer acknowledges and agrees that Carbon Black, and Carbon Black’s subsidiaries, are third party beneficiaries of this Addendum with full power and authority to enforce the terms and conditions herein, and that, upon Customer’s acceptance of the terms and conditions of this Addendum, Carbon Black will have the right (and will be deemed to have accepted the right) to enforce this Addendum against Customer as a third party beneficiary thereof.
TECHNICAL DATA: As part of providing the Software Products, Carbon Black may collect and use information about Customer binaries, devices, files, systems, software, and endpoints (“Technical Data”), to support use of the Software Products. The Technical Data may also be used by Carbon Black and distributed (in aggregated and non-attributable form) to improve the operation and functionality of the Software Products, and for threat detection, threat intelligence, and related analysis. By accessing and using the Software Products, Customer agrees to the collection, use, distribution, transfer, back-up and storage of the Technical Data by Carbon Black and its service providers. Customer also agrees that Carbon Black and its service providers may, as part of Customer’s use of the Software Products, distribute, transfer, copy, backup and store Technical Data in the United States, Europe, or other jurisdictions where data protection standards may be different. Carbon Black shall not be responsible for the deletion, correction, destruction, damage, or loss of any such data collected. Carbon Black reserves the right to establish or modify its general practices and limits relating to storage of such data, and/or to delete or destroy any or all such data periodically.
USERS: Customer acknowledges and agrees that it is responsible for (i) identifying and authenticating all employees, contractors, and other users, as applicable (collectively, “Users”) that it authorizes to use the Software Products, (ii) controlling against unauthorized access by Users, and (iii) for maintaining the confidentiality of usernames, passwords and account information. Carbon Black is not responsible for any damages or harm caused by Users, including, but not limited to, any damages caused by a User’s failure to use available two-factor authentication to access the Software Products. Customer is responsible for all activities that occur under Customer’s usernames, passwords, and accounts or as a result of Customer’s access to the Software Products and agrees to notify ReliaQuest immediately of any unauthorized use.
UPDATES: Carbon Black may make changes or updates to the Software Products, including but not limited to infrastructure, security, technical configurations, application features, at any time during the subscription term, to reflect changes in technology, industry practices, patterns of system use, and availability of third party content.